Weekly Notes: legal news from ICLR — 11 July 2016

This week’s roundup of legal news and events includes a letter of a thousand (plus) lawyers, urging compliance with the rule of law over Brexit, plus prizes for good lawyers and a telling off for a less good advocate. UPDATED 12 July – with added Brexit law (yes, that is now a thing). UPDATED AGAIN 15 July – with added parliamentary debate promise.

EU Referendum

Second Referendum Petition response

The government has responded to the so-called Second Referendum Petition, which received over 4m signatures in support, by saying in essence that the legislation under which the EU Referendum was operated was designed to ask and answer a single question, once. “The Act did not set a threshold for the result or for minimum turnout.”

This does not of course address any of the consequential issues raised by the way the referendum question was answered. Even assuming the Act impliedly provided for the triggering of an article 50 notification under the EU Treaty, with or without further parliamentary debate or vote, it answers none of the aspirations which might be harboured by those voting to leave the EU, which it has since become evident are many, varied, and in some cases frankly barmy. (A vote to leave the solar system could not have thrown up more ludicrous and inconsistent aspirations.)

The government full response (all two paragraphs of it) may be read on the petition website here: petition.parliament.uk

UPDATE: Parliament will now debate this petition.

Parliament will debate this petition on 5 September 2016.

The announcement states:

The Petitions Committee has decided to schedule a House of Commons debate on this petition. The debate will take place on 5 September at 4.30pm in Westminster Hall, the second debating chamber of the House of Commons. The debate will be opened by Ian Blackford MP.
The Committee has decided that the huge number of people signing this petition means that it should be debated by MPs. The Petitions Committee would like to make clear that, in scheduling this debate, they are not supporting the call for a second referendum. The debate will allow MPs to put forward a range of views on behalf of their constituents. At the end of the debate, a Government Minister will respond to the points raised.

However, it also points out:

A debate in Westminster Hall does not have the power to change the law, and won’t end with the House of Commons deciding whether or not to have a second referendum. Moreover, the petition – which was opened on 25 May, well before the referendum – calls for the referendum rules to be changed. It is now too late for the rules to be changed retrospectively. “

Lawyers’ letter urges free vote on art 50

More than a thousand barristers have written a letter to the Prime Minister stating their view that there should be an Act of Parliament, preceded by a free vote of all MPs, before any decision is made to leave the EU by triggering art 50 of the EU Treaty.

The letter will be delivered to the Prime Minister and all MPs later this week.

The full text of the letter reads as follows:

TO THE PRIME MINISTER AND ALL MEMBERS OF PARLIAMENT

9 July 2016

Dear Prime Minister and Members of Parliament

Re: Brexit

We are all individual members of the Bars of England and Wales, Scotland and Northern Ireland. We are writing to propose a way forward which reconciles the legal, constitutional and political issues which arise following the Brexit referendum.

The result of the referendum must be acknowledged.

Our legal opinion is that the referendum is advisory. The European Referendum Act does not make it legally binding.

We believe that in order to trigger Article 50, there must first be primary legislation.

It is of the utmost importance that the legislative process is informed by an objective understanding as to the benefits, costs and risks of triggering Article 50. The reasons for this include the following:

There is evidence that the referendum result was influenced by misrepresentations of fact and promises that could not be delivered. Since the result was only narrowly in favour of Brexit, it cannot be discounted that the misrepresentations and promises were a decisive or contributory factor in the result.

The parliamentary vote must not be similarly affected.

The referendum did not set a threshold necessary to leave the EU, commonly adopted in polls of national importance, e.g. 60% of those voting or 40% of the electorate. This is presumably because the result was only advisory.

The outcome of the exit process will affect a generation of people who were not old enough to vote in the referendum.

The positions of Scotland, Northern Ireland and Gibraltar require special consideration, since their populations did not vote to leave the EU.

The referendum did not concern the negotiating position of the UK following the triggering of Article 50, nor the possibility that no agreement could be reached within the stipulated two year period for negotiation, nor the emerging reality that the Article 50 negotiations will concern only the manner of exit from the EU and not future economic relationships. All of these matters need to be fully explored and understood prior to the Parliamentary vote.

The Parliamentary vote should take place with a greater understanding as to the economic consequences of Brexit, as businesses and investors in the UK start to react to the outcome of the referendum.

For all of these reasons, it is proposed that the Government establishes, as a matter of urgency, a Royal Commission or an equivalent independent body to receive evidence and report, within a short, fixed timescale, on the benefits, costs and risks of triggering Article 50 to the UK as a whole, and to all of its constituent populations. The Parliamentary vote should not take place until the Commission has reported.

In view of the extremely serious constitutional, economic and legal importance of the vote either way, we believe that there should be a free vote in Parliament.

Yours sincerely

PHILIP KOLVIN QC
And 1053 others

Update: Brexit law

Yes that is now a thing…

The legal consequences of Brexit are going to be many and varied. Apart from action and advice from lawyers as to the constitutional issues and effects of the referendum result, a number of law firms also began advising clients as soon as the result was known on the possible legal consequences for their businesses and affairs.

Sarah Abraham, a barrister at Brick Court chambers, has written a post on their blog in which she “identifies some of the types of litigation in which EU law issues arise and in which further consideration will have to be given to the effect of a pending Brexit.” Effect of EU referendum on cases involving EU courts

A reminder that Gordon Exall in his Civil Litigation Brief has been collecting (and continues to collect and update) links to blogs and commentary on Brexit: The Legal Consequences

Reporting EU law

A matter which has given us at ICLR some concern is the extent to which we should go on publishing, as we do, law reports of the decisions of the Court of Justice (ECJ) and, to a rather lesser extent, the General Court (formerly the Court of First Instance) (EGC or CFI) of the European Union. The fact is, anyone who does business in Europe is likely to encounter the same legal issues in relation to competition, free movement, environmental law and so forth, as if the UK were still a member; only those whose conduct does not involve any European dimension are likely to be unaffected by EU law in future; and in the meantime all the EU laws already implemented into UK law by direct or indirect legislation will continue to be construed by our own courts in accordance with the jurisprudence of the ECJ. For the time being at least, there seems no good reason to stop what we are doing in this respect.

Crime

Go easy with the oratory

Some barristers don’t seem to realise that the age of Marshall Hall, subject of a brilliant new biography by Sally Smith (reviewed here), is long over. Barristers no longer win cases by speaking to the jury in a grand, dramatic or even melodramatic style, hoping to gain their sympathy where the facts of the case might not win them over. But this seems to have escaped the attention of one barrister, who was taken to task by the Court of Appeal (Criminal Division) in R v Foxley [2016] EWCA Crim 798 for adopting a “grandiloquent, rhetorical, and at time almost facetious” style of advocacy in representing a defendant charged with making false benefit claims. After her conviction, Caroline Foxley appealed on the grounds including her counsel, David Leathley’s, “wholly incompetent and misguided” conduct of her case. The Court of Appeal lambasted Leathley for his ” grossly hyperbolical as well as in an unfocused and unstructured” speechifying, chunks of which are quoted in its judgment, but concluded that despite a complaint from a juror, it had not deflected the jury from determining the case on its facts and the conviction was therefore safe. Giving judgment, Davis LJ said:

Our view is that the grandiloquent, rhetorical and at times almost facetious style of Mr Leathley as adopted by him in this case should find no room in any modern criminal trial, let alone this one.
“The defence case here surely best called for a measured and even-handed approach in order to enhance such credibility as it could muster.”

Parish News

Legal Aid Lawyers of the Year Award

The LALYs, as they are known, were dominated this year by Hillsborough, with a special award going to the more than 60 lawyers from six law firms and six sets of chambers who acted in what was described by the Legal Aid Practitioners Group co-chair Jenny Beck as ‘the most significant legal case in a generation’.

Awards also went to the lawyers involved in the successful Joint Enterprise cases appeal to the Supreme Court and to Crowdjustice for pioneering work in helping fund legal actions amidst a landscape of savage cuts in legal aid. For a full report, see Jon Robins, Legal Voice, With Hope in our Hearts…

That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.

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